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Balaji and ors. Vs. Derha and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 43 of 1976
Judge
Reported inAIR1982MP195
ActsMadhya Pradesh Land Revenue Code, 1959 - Sections 185(1)
AppellantBalaji and ors.
RespondentDerha and ors.
Appellant AdvocateD.M. Dharmadhikari, Adv.
Respondent AdvocateM.M. Sapre, Adv.
Cases ReferredCode. In Gutti v. Mohanlal
Excerpt:
.....185. in our opinion, if an ordinary tenant's tenancy had come to an end before the commencement of the 1959 code in accordance with the terms of his lease, such a tenant cannot be said to be holding land under the tenure-holder when the 1959 code came into force and he cannot get the status of occupancy tenant under section 185 (1) (i) (a). we would, however, like to make it clear that if after the expiry of the lease the land is in possession of the tenant with implied or express consent of the landlord, his possession would be under a legal title as the lease would be renewed by holding over......is the meaning and effect of the words 'holds any land' occurring in section 185 (1) of the m. p. land revenue code, 1959, whether it means merely continuing in possession even after possession became unauthorised or that of a trespasser ?'2. the facts found by the learned single judge are that the plaintiffs-appellants who held the suit lands in malik makbuza rights let out the lands to the defendant by a chilthi dated 25th april, 1957 for the year 1957-58 on adhiya basis. the defendant had undertaken to deliver back possession on the ex-piry of the period of lease. the suit for possession was filed on 23rd september, 1969. the plea of the defendant was that he became occupancy tenant under section 185 (1) (i) (c) of the m. p. land revenue code, 1959. the learned single judge was of.....
Judgment:

G.P. Singh, C.J.

1. A learned single Judge who heard this appeal has referred the following question to be answered by a Division Bench:--

'What is the meaning and effect of the words 'holds any land' occurring in Section 185 (1) of the M. P. Land Revenue Code, 1959, whether it means merely continuing in possession even after possession became unauthorised or that of a trespasser ?'

2. The facts found by the learned single Judge are that the plaintiffs-appellants who held the suit lands in malik makbuza rights let out the lands to the defendant by a chilthi dated 25th April, 1957 for the year 1957-58 on Adhiya basis. The defendant had undertaken to deliver back possession on the ex-piry of the period of lease. The suit for possession was filed on 23rd September, 1969. The plea of the defendant was that he became occupancy tenant under Section 185 (1) (i) (c) of the M. P. Land Revenue Code, 1959. The learned single Judge was of the view that although the defendant continued in possession after expiry of the period of the original lease, no implied inference of assent of the plaintiffs could be drawn to the defendants' continuing in possession because the parties were engaged in litigation from the very beginning. According to the learned single Judge, the possession of the defendant after the expiry of the lease was not under any legal title.

3. It is not in dispute that the defendant became an ordinary tenant under Section 166 of the M. P. Land Revenue Code, 1954. Explanation (i) to this pecifically included a person who paid lease money in respect of any land in the form of crop share. Section 167 of the 1954 Code laid down that except as otherwise provided, an ordinary tenant shall hold land on such terms as may be agreed upon between him and his tenure-holder. Under Section 168 of the same Code, subject to the terms of the contract, the right of an ordinary tenant was heritable. There was no statutory protection in the Code of 1954 against eviction of an ordinary tenant who was liable to ejectment in accordance with the terms agreed upon between him and his tenure-holder. In the instant case, the lease in favour of the defendant was only for one year. That lease expired on the expiry of the agricultural year 1957-58.

Under the terms of the lease the defendant was liable to deliver back the possession on 1st July, 1958 and on his failure to do so, he was liable to ejectment in a suit filed by the plaintiffs. The 1954 Code was repealed and replaced by the M. P. Land Revenue Code, 1959 which came into force on 2nd October, 1959. Section 185 (1) of this Code reads as follows :--

'185(1). Every person who at the coming into force of this Code holds-

(i) in the Mahakoshal region-

(a) any land, which before the coming into force of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955) was Malik-Makbuza and of which such person has been recorded as an absolute occupancy tenant; or

(b) any land as an occupancy tenant as defined in the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); or

(c) any land as an ordinary tenant as defined in the Madhya Pradesh Land Revenue Code, 1954 (II of 1955);

shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code.'

4. The contention of the learned counsel for the plaintiffs-appellants is that the word 'holds' as it occurs in Section 185 signifies a lawful title and an ordinary tenant whose lease had expired before the commencement of the 1959 Code and who was liable to ejectment under the law then in force could not be said to hold land at the coming into force of the 1959 Code and could not claim the status of an occupancy tenant. The learned counsel for the respondents, on the other hand, submitted that Section 185 (1) (i) will also cover cases of ordinary tenants whose lease had expired before the commencement of the 1959 Code but who were continuing in possession on the date when the Code came into force.

5. The Supreme Court in a number of cases had held that the word 'holds' signifies possession under a legal title. (K. K. Handique v. Member, Board of Agricultural Income-tax, Assam, AIR 1966 SC 1191; Budhan Singh v. Babi Bux, AIR 1970 SC 1880 and State of U. P. v. Sarjoo Devi, AIR 1977 SC 2196. The word 'holds' occurring in Section 166 (1) was given this meaning by one of us (C. J.) in Homi Framji Cooper v. Har-bans Singh and another 1978 Revenue Nirnaya 421. Now a person whose tenancy has come to an end after the expiry of the period of lease cannot be said to be in possession under a lawful title as he ceases to have any right to continue in possession. It is true that such a person cannot be forcibly evicted and in case of forcible eviction he can maintain a suit under Section 6 of the Specific Relief Act, 1963 for recovery of possession but this is for the reason that Section 6 of the Specific Relief Act or a provision similar to that does not take notice of title. These provisions only oblige the landlord to sue for possession on extinguishment of tenancy in case the tenant does not give up possession on his own. But they do not have the effect of converting the unauthorised possession of the tenant whose tenancy has expired into possession with legal title. As observed by the Supreme Court in M. Chockalingam v. Manickavasagam, AIR 1974 SC 104. 'Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession.' It was also laid down in the same case; 'A tenant on the expiry of lease cannot be said to continue in lawful possession of the property against the wishes of the landlord if such a possession is not otherwise statu-torily protected under the law against even lawful eviction through Court process, such as under the Rent Control Act. Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession even with the best of title.' It is on these principles that in Lallu Yeshwant Singh v. Jagdish Singh, AIR 1968 SC 620 the Supreme Court held that a landlord has no right to re-enter after the extinguishment of tenancy and he must approach the Court for recovery of possession and that if the landlord recovers forcible possession the tenant can sue for being restored to possession under Section 326 of Qanoon Mal Riyasat Gwalior which was in pari materia with Section 6 of the Specific Relief Act. The legal position would, however, be different if a landlord is prevented by legislation from suing for possession even though the tenancy has come to an end. In such cases of statutory protection a tenant whose lease has expired will have a lawful title and such a person will also be said to hold land in spite of expiry of his lease. Such a case is illustrated by the decision of the Supreme Court in Rao Nihalkaran v. Ram Gopal, AIR 1966 SC 1485. It was held in that case that a tenant or a sub-tenant who was protected against eviction by the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act, 1954 was holding land on the coming into force of the 1959 Code in spite of the expiry of his lease and that such a tenant became an occupancy tenant under Section 185 (1) (ii) (a) of the 1959 Code. In contrast in Nathu Prasad v. Ranchhod Prasad, AIR 1970 SC 483 the Supreme Court held that a sublessee who was not protected from eviction and whose lease had expired and who was declared as a trespasser though continuing in possession since the commencement of the Code did not acquire a right of occupancy tenant under Section 185 (1) (ii) (b) of the 1959 Code. In Gutti v. Mohanlal, 1969 MPLJ 470 Tare J. seemed to be of the view that even an ordinary tenant whose tenancy had come to an end before coming into force of the 1959 Code would become an occupancy tenant. With great respect, this view does not give due weight to the meaning of the word 'holds' which occurs in Section 185. In our opinion, if an ordinary tenant's tenancy had come to an end before the commencement of the 1959 Code in accordance with the terms of his lease, such a tenant cannot be said to be holding land under the tenure-holder when the 1959 Code came into force and he cannot get the status of occupancy tenant under Section 185 (1) (i) (a). We would, however, like to make it clear that if after the expiry of the lease the land is in possession of the tenant with implied or express consent of the landlord, his possession would be under a legal title as the lease would be renewed by holding over. The learned counsel for the respondents submitted that in the instant case also there was implied consent of the plaintiffs for the defendant's continued possession after the expiry of the lease and that his tenancy was renewed by holding over. The finding of the learned single Judge in the order of reference is against this contention and we cannot examine the correctness of that finding while hearing this reference. The hearing before us is limited to the question of law which has to be answered in the light of the facts stated by the learned Single Judge in the referring order.

6. For the reasons given above, we answer the question as follows:--

The words 'holds any land' occurring in Section 185 (1) of M. P. Land Revenue Code, 1959, mean possession under a lawful title or possession authorised by law. It does not include mere continuing in possession after it had become unauthorised. It also does not include possession of a trespasser, The costs of this reference would abide the result of the appeal.


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